[The editorial on COVID-19 and I•CON was already run on the ICONnect blog and can be found here.]

We invited Marta Cartabia, member of I•CON’s Advisory
Board and President of the Italian Constitutional Court, to write a Guest
Editorial.

Courts’
relations

In her seminal book Law’s Relations, which deserves attention for many reasons, Jennifer Nedelsky advocates for the push to give prominence to relations in legal and political talks. The first lines read: “Relationships are central to people’s lives [. . .] but they are not treated as constitutive.” She considers and discusses the liberal theories of rights and calls for “a shift in emphasis that moves relationship from the periphery to the center of legal and political thought and practice.”[1]

In a similar way, if on a different plane, relations are
central in institutional organizations,[2]
and they are similarly neglected. They are a variable that affects the overall position
and authority of each institution in the constitutional architecture. Take, for
example, the chief of the executive branch: his effective capacity to lead and
influence the political direction of a country depends, inter alia, on his relations with the other branches of
government. After all, it is the nature and quality of the relationships between
the institutional actors that characterize a regime. But despite all this,
institutional relations are hardly ever referred to in legal theory.

Constitutional courts[3] are not an exception. To paraphrase Nedelsky’s statement, relations are fundamental to a court’s office, but they are not treated as constitutive. As a scholar and a practitioner of constitutional law, I have come to consider institutional relations a central tenet of constitutional courts’ self-understanding and a key element of their authority.

In ancient Rome, auctoritas was distinct from potestas,
and generally referred to the role of the Senate, whose force depended on its
level of prestige, influence, and clout. The Senate’s words were less than a command
and more than advice: they amounted to advice that could not be ignored. Potestas
in populo, auctoritas in senatu (Cicero).

Like any other institution, a court’s authority is not
defined only by the powers it is entitled to exercise. Its strength also depends
on other elements: courts that belong to the same family and that look similar in
terms of composition and powers may, in fact, play different roles, perform
their functions in different ways, and reach different outcomes, depending on
the type of respect they command from other actors. And respect, in turn,
depends very much on relations.

Indeed, the main feature of courts is
their independence. They are always required to remain non-accountable to other
powers and to avoid any form of direction or supervision coming from outside. Unlike
electoral bodies, courts have no reason to please any other stakeholder. “The
mandate of the judges not being renewable, they have no particular incentive
to be biased in favor of one or the other party in constitutional
interpretation conflict. Their opinions (considering that in general the vote
of the members of the [constitutional courts remains] undisclosed) will not
have an impact on the renewal of their office (which is impossible) or on
possible other appointments at the end of the mandate.”[4]
Yet, courts’ independence does not contradict their interdependence: constitutional
courts, like other institutions, such as legislatures and chief executives, are
also required to find and preserve their place on the constitutional map, in relation
to the other branches, in order to effectively perform their duties.

Comparative studies on judicial review usually work on
models:for
example, they draw a contrast between the American and the European prototypes and
traditionally distinguish between diffused and centralized systems.[5]
Another line of comparative studies makes a distinction between concrete and
abstract review,[6]
depending on the procedure for access to courts. All of these classifications
are highly relevant and useful, indeed. And so are the analyses that highlight
the distinguishing features of judicial review in specific contexts, like, for
example, post-communist countries[7]
or new democracies.[8] However,
there are some features of constitutional courts that can only be understood if
their institutional relations are taken into account. A missing element in the
very rich scholarship on constitutional courts, judicial review, and
constitutional adjudication is an analysis that puts the courts’ relations
at the center.

Somewhat closer to a courts’ relations analysis is the
brand of studies that focuses on judicial behaviors by contrasting, for example,
judicial activism and self-restraint or deference,[9]
passive and active virtues of courts,[10]
strong and weak models of judicial review,[11]
classic and romantic judges,[12]
constitutional personae,[13]
and so on. Yet, a comprehensive comparative investigation of courts’ relations
is still missing.

An analysis that takes courts’ relations into account would
be interested in comparative constitutional experiences. While it would include
abstract legal models, it would also take into account the historical, concrete
dynamics of each institution and would reveal courts in action.

So far, the idea of judicial relations has been
explored, to a narrow extent, in the limited field of “judicial interchange” with
foreign experiences[14]
and in the context of composite transnational legal orders. In particular, judicial
dialogues and judicial conversations are a topos in studies that look at
“multilevel” systems, especially on the European continent.[15]
The interaction between the national and transnational dimensions of
constitutional law has drawn some attention to the relations between courts, in
particular in the wake of the theory of constitutional pluralism.[16]

A recent and very insightful reflection on the swinging movements between the national and transnational levels in constitutional adjudication is provided by Lustig and Weiler in their pathbreaking article on the three waves in the judicial review of legislation.[17] In their analysis, the third wave encompasses a broad range of cases that show a diffuse reaction to the expansion of transnational orders of higher law, which took place during the second wave. The authors suggest that these examples are not isolated dots. They are, rather, connected by lines that sketch a visible inward turn in judicial review, ascompared to the open attitude that national constitutional courts had shown during the previous decades. From a historical point of view, no doubt they capture an ongoing trend that poses new fundamental questions not only about the role of courts but also about the interconnections between the national and the transnational.

Yet, if a courts’ relations analysis were added to this
picture, the dots and the lines that Lustig and Weiler examine would appear
neither identical nor uniform. The impressive range of cases that can be ascribed,
with good reason, to the “third wave”—from Argentina to Israel and from South
Korea to Germany to Italy—in fact encompasses very diverse responses if courts’
relations are added to the picture.

Consider an example taken from the institution that I am
most familiar with. Lustig and Weiler mention Case no. 238 of 2014, in which the
Italian Constitutional Court determined that national constitutional fundamental
principles on human dignity and the right to defense required an interpretation
of the international customary rule on immunity of states from jurisdiction to
exclude acts classified as war crimes and crimes against humanity. In that
case, the Italian Court was openly contradicting the International Court of
Justice, which had reached an opposite decision on the very same issue a couple
of years before.[18] The
Italian Court was openly challenging the International Court of Justice and
disregarded its decision. Now compare this case to another well-known decision by
the same Italian Court, that of the Taricco
saga, no. 24 of 2017, on European Union (EU) fraud and limitation periods. In a
way, the two cases are similar because, in the Taricco decision, too, the Italian Constitutional Court identified a
discrepancy between some fundamental constitutional principles on criminal law
and the interpretation given by a supranational court: in this case the European
Court of Justice (ECJ). However, in this second case the divergence did not
give rise to an unsettled conflict, as it had in the previous one, and the
problem found a solution shared by the two courts, national and international.
The two cases were very similar: the national court’s concern, in both cases,
was the protection of some basic constitutional principles, as interpreted at
the domestic level. In both cases, it achieved this goal. But, in the first
case, the relation with the International Court of Justice was confrontational
and conflictual, with the relative costs in terms of reciprocal trust; in the
second one, the relation was dialogical and constructive, with the relative
benefits.

It may be noted that the major difference between the
two cases had to do with the preliminary ruling procedure. Whereas, in the EU
context, courts are able to interact via preliminary ruling ex article 267
TFEU (Treaty on the Functioning of the European Union), they do not have this
opportunity when it comes to the International Court of Justice. Therefore, the
Italian Court was able to interact with the ECJ and reach a common, shared
solution, whereas this kind of interaction was impossible with the
International Court, due to a lack of procedural infrastructure. This procedural
difference is highly relevant. If we want to prevent plurality and diversity
from turning into fragmentation, we need institutional bridges that facilitate
connection, agreements, and common understanding.

Still, procedures merely provide opportunities. The substantive
difference is made by the relational approach of each actor.

A brilliant example of a “relational analysis of constitutional
adjudication” in a comparative perspective can be found in a recent paper by
Armin von Bogdandy and Davide Paris.[19]
They examine similar cases decided by the German and the Italian Constitutional
Courts, in the same European context, in which the two national courts invoked
very similar doctrines about national identity and “counterlimits.” Yet, the
portraits of the two judicial bodies look very different.

They note that, when confronted with an actual or
foreseeable conflict between EU and constitutional law, “the German
Constitutional Court tends to instruct the Court of Justice clearly on the
limits within which it is prepared to accept the primacy of EU law. The German
Constitutional Court sets the boundaries, and the Court of Justice better not
overstep those boundaries.”[20]
The Italian Constitutional Court follows a different approach. The Italian “Consulta” tends not to sketch the
decision it wishes to receive from the Court of Justice but confines itself to
stating the existence of a conflict. By doing so, the authors highlight, the Italian Constitutional Court retains
the ability to respond when the case comes back to it after the European decision. They compare the Italian
Constitutional Court to a poker player: it plays a first, very open move and
then waits to see the reaction of the ECJ. Both the German and the Italian
approach can be effective. But their posture is different. One is more like a
wrestler; the other is like a poker player. The conditions are the same, and
the problems are similar, but the voices speak in different tones.

Courts are ideally engaged in a constant ideal
conversation with a number of external audiences—to borrow from Nuno Garoupa
and Tom Ginsburg[21]—made
up of other national courts, parliaments, supranational and international
courts, legal scholars, civil society, and public opinion at large. A focus on
courts’ relations would, at least, require a map of the actors—political,
social, and judicial—that interact with constitutional courts, an assessment of
the toolkit of procedures that allow the courts to cooperate with other
bodies, and a discussion of the legal doctrines elaborated by each court
to leave room for other bodies in accomplishing their mission and to shape a
balanced relationship with each of them.

In a couple of experimental works[22]
that I co-authored with some distinguished colleagues, courts’ relations were taken
as a paradigm to assess the Italian Constitutional Court in a comparative
perspective. Judicial relations were “unpacked” along with the different “audiences”
that the Court speaks to. The results were very thought-provoking and rendered
an image of the Italian Court quite different from the usual one. Let me
articulate a possible pathway for a “relational analysis” of the Italian
Constitutional Court, with the understanding that the same map could be used
for all other courts and, moreover, in a comparative perspective.

As far as the relation with common judges is
concerned, it is commonplace to observe that constitutional courts’ relations with
other national judges,especially
with other higher courts, are bound to be conflictual and confrontational.[23]
This is true in theory and has been true in some isolated occasions in Italian
history, which, however, are not representative of more ordinary times. In this
area, the Italian experience has been influenced by the indirect,
incidental procedure (called procedura in via incidentale) which is the
main avenue for bringing cases before the Constitutional Court. This procedure
is similar to the preliminary ruling in the EU system (the European Treaties
were, in fact, influenced by the Italian model[24]),
and it implies strict cooperation with the ordinary
courts, which are the “gatekeepers” both of the Constitutional Court and of the
European Court of Justice, deciding which cases will be referred for judgment
and which will not. This cooperative model is less imposing than direct forms
of complaint, in which constitutional courts play the role of a judge of final
appeal over the decisions of all other judicial bodies. As a result, constitutional
adjudication in Italy relies on close cooperation between the Constitutional Court
and the ordinary judicial branches and represents a point of convergence
between a centralized and a diffused model.[25]

The relationship between the Italian Court and supranational
and international judges has changed over time. For long decades the Court
showed indifference and formal distance from them.
Then, a long period of informal and silent reciprocal, indirect influence
followed. More recently, as described above, the Constitutional Court has incrementally
entered into an active relationship with the judge-made law of the two European
supranational courts, in particular in human rights cases. The Court now engages
in open and direct relations with external judicial bodies, but it is important
to note that these relations are not oriented toward the unreasoned acceptance of
judicial solutions from other courts. Rather, it is a two-way relationship between
peers, a dialogue that triggers constructive convergence but also leaves room
for difference and distinctiveness.[26]

In a way, the relationship between a constitutional court
and the legislature is bound to be antagonistic and confrontational. After all,
a constitutional court has the power to review parliamentary legislation and,
if necessary, to invalidate it. But in Italy the relationship with the
legislature has been less conflictual than in other contexts. The
counter-majoritarian difficulty was discussed when the Constitutional Court was
founded, but over time it has not affected the activity and reputation of the
Court. Over the first decades of the Court’s existence, Parliament and the
Court shared the mission of cleaning up the legal system from all the dross left
over from the fascist regime. Nevertheless, while they have not been
conflictual, relations with the legislator have also not been very cooperative.
In a number of decisions, the Constitutional Court has required Parliament to
intervene in order to fill gaps in legislation or to reform the legislation in
force in order to conform to constitutional principles, by means of so-called sentenze
monito (warning decisions), but these requests are usually ignored. The
Italian Parliament is not as amenable to cooperation with the Court as, for
example, the Colombian legislator is with the Constitutional Court of that
country.[28]
In a recent case on assisted suicide,[29]
following the example of Canada[30]
and the UK,[31]
the Constitutional Court decided to suspend the proceeding pending before it in
order to allow time and space to Parliament to introduce a new regulatory
framework through legislation. The one-year delay established by the Court
expired and—unlike its British and Canadian counterparts—the Italian Parliament
had not passed any legislation. In cases of this kind, parliaments and
constitutional courts should act together as “co-legislators,” as Michel Troper
puts it, because the Court is required to invalidate the piece of legislation
that contrasts with constitutional principles but lacks the power to fill the
gap and to construe a new positive discipline, which is the task of Parliament.

Another audience common to all constitutional
courts is legal scholarship. From a formal point of view, unlike the
German BVG or the US Supreme Court, the Italian Court is very reluctant to
enter into an open discussion with legalscholarship in the
reasoning of its decisions. The same can be said of its approach to the comparative
jurisprudence of other national constitutional courts, although in some recent
decisions[32]
the Court has appeared more willing to engage in a direct comparison with other
legal systems. In any case, the Court is well informed and well aware of the
doctrinal debates and of foreign jurisprudence, even when no direct mention is
made of them in the body of its decisions. The Court has a very active Research
Office, the staff of which includes experts in comparative law, and is deeply
engaged in maintaining contacts with other European courts. In this respect, its
relations with legal scholarship and with “foreign law” are not at all poor,
but they lack transparency and develop along unofficial lines.

By contrast, the Court has done very little thus far
to encourage more open and transparent participation by civil society,
especially through its procedural rules.[33]
So far, the Court has not followed the practice of the European Court of Human
Rights, the US Supreme Court, and the many other courts around the world that
accept amicus curiae briefs or allow
third-party interventions in their public hearings. Yet, courthouse doors
should be open to the contribution of civil society, especially when the case
to be decided involves, for example, controversial issues on fundamental social
values concerning family, procreation, end of life, and education.

More generally, ordinary citizens in Italy largely
ignore the Constitutional Court, its competence, and its justices. The public
is generally unfamiliar with the names, faces, and backgrounds of the justices
who compose it. Only very recently, when the Court decided to celebrate its sixtieth
anniversary with a conference dedicated to “the decisions that have changed the
life of Italians,”[34]
have things begun to take a different course. Since then, the Court has devoted
a great deal of energy to being more proactive in reaching out transparently to
civil society, scholars, and professionals through a number of concurrent
channels.

These are only some examples—mainly taken from the Italian experience, but they could
be repeated for all other courts—that confirm the need
to take into account a plurality of relations in order to get to a realistic
portrait of any given court. Moreover, the previous examples underscore the need
to articulate the relational capacity of each constitutional court according to
different audiences, distinguishing the institutional relations (which may,
in turn, be subdivided into judicial and political relations) from
the academic and social relations.

Indeed, much more could be added along these lines.

In our day, personal, social, political, and
institutional relations are in crisis in many respects. Distrust prevails over
confidence; exit overcomes voice;
walls replace bridges; exclusion
attracts more than inclusion; peculiarities overshadow commonalities;
withdrawals are more frequent than new connections; divergence prevails over
convergence. The never-ending search for
cohesion clashes with the strong desire to protect identities. The tension
between global and local is becoming more and more dramatically evident. Even
at the national level, the overall tone of political relations is frequently
dominated by distrust, conflict, anger, resentment, fear, or insecurity.[35]
Public opinion reflects a chasm
between the institutions and people’s everyday lives. Political stasis is always a risk in every polis,
at any time in history especially when fragmentation is the hallmark of a
given society. In such a context, all institutions are required to contribute
to maintaining and reconstructing social bonds. Courts that cultivate open and
solid relations with other judicial, political, and social actors are gaining
authority and can use their authority for the endless mission of polity-building.
Constitutional courts are located in a privileged position to that purpose,
because they do not belong to any of the other branches but are at the junction
of all of them. In a fragmented era, relations matter also at the institutional
level, and they deserve a prominent place in a collective, reasoned, and
dispassionate reflection.

Marta Cartabia

Professor of
Constitutional Law

President, Italian
Constitutional Court

Once Upon a Time in Catalonia…

The year 2025 was a turning
point in the never-ending Catalan saga. A new Spanish Government, wanting to
reach “Once and For All Closure,” agreed to endorse a referendum in Catalonia—believing
the Remainers would win. They took all necessary constitutional steps to allow
the referendum to go ahead.

A fierce but orderly
campaign ensued. It was, however, the Independence vote, with a small majority,
which eventually prevailed: 51-49 per cent. Catalonia emerged as an independent
state. A new Constitution, declaring Catalonia “…eternally sovereign and
indivisible,” was drafted, and was approved by a small majority in the new
legislature as well as in a subsequent referendum which replicated the
secession result. The Constitution could be amended by a similar two-step
process.

The social divisions
produced by the process were keenly felt, not least by the large number of
Catalan citizens of Castilian origin, but also by Catalan Remainers who were
dubbed sometimes as “traitors.” In the referendum there was a sizeable number
of towns and villages with a majority of Remainers.

Independence was uneventful,
though not quite the “bed of roses” that had been promised during the
referendum campaign. Negotiations for entry into the European Union dragged
on—several Member States weary of the Catalan secession precedent put up a
variety of obstacles and delaying tactics. Admission to the Union requires
unanimity. Direct foreign investment continued but at a markedly reduced pace
than before, especially given the uncertain status of Catalonia in the Union.

Social tensions deepened,
predictably around issues of language, education and culture, the government
firmly rejecting any autonomy on these issues to those municipalities with a
majority of Remainers. A new issue, migration of Castilians to Catalonia, emerged
with quite strict requirements for obtaining Catalan citizenship, notably
mastery of language, the fear being a reversal of the slim majority of
secessionists. In short order, a new movement, the Unionists, emerged, calling
for a reversal of the referendum result and a return to union with Spain.
Campaigning with the slogan, “Better Together,” they pointed to the several
examples within the Union of a “second referendum” called to reverse the result
of a previous one.

The Catalan government and
legislature—the Catalan Constitutionalists—roundly rejected a call for a new
referendum to reverse independence, claiming this would violate the “Eternal
Sovereign” clause of the Catalan Constitution. They pointed to the
irreversibility of the German Eternal clause as precedent. And although all
opinion polls indicated that the Unionists might prevail in a referendum, the
necessary majority in the legislature for a constitutional change did not
exist.

In a meeting of mayors of
those municipalities with a majority of Remainers (now called Unionists) a
decision was taken to organize an unofficial referendum, a decision endorsed by
the councils of those municipalities.

The Government was firm in
declaring such a referendum illegal, in violation of the Constitution and
Catalan criminal law (which by and large replicated Spanish criminal law). A
petition by the Unionists to the Catalan supreme judicial authorities was
unsuccessful—the Courts affirmed the illegality and unconstitutionality of such
an unauthorized referendum, the grave threat to the rule of law, and warned of
criminal liability for the organizers.

The Government of Spain also
declared its displeasure with such an illegal referendum, but widespread
populist voices in Spain demonstrated in support.

Eventually, the Unionist
movement in Catalonia announced their intention to hold such a referendum on
October 1 2027. The Catalan General
Prosecutor, in a terse statement, announced that the law would require her to
bring criminal charges against the organizers should concrete moves be taken to
realize such a plan. Any involvement of public officials would open them to
criminal liability for aggravated misuse of public funds, aggravated
instigation of public disorder and might even amount to sedition. The General
Prosecutor warned that under Catalan law no discretion lay in her hands and
that arrest warrants would be issued swiftly and automatically.

This warning
notwithstanding, the Unionist organizers proceeded with their plan. In those
municipalities with a Unionist majority the mayors contrived to hold the
referendum, setting up voting booths and providing referendum ballot papers.
The incensed government attempted to confiscate them on the day. By and large
they managed such with little violence, though a photograph—some claiming it to
be fake—of a blood-covered face, was published around the world. Participation
was patchy, but over a million votes were counted.

True to her word and the
law, the General Prosecutor issued arrest warrants for the principal organizers
on charges of misuse of public funds and public disorder and announced that the
issue of sedition was being studied further, thus avoiding the expected
negative international reaction to such a charge. One of the organizers escaped
to Paris. The General Prosecutor steadfastly refused to seek his extradition,
commenting dryly: “He’s better in Paris than Barcelona; let him enjoy fine
French cuisine whilst his fellow criminals enjoy our prison food.”

At the ensuing trial the
General Prosecutor requested the maximum penalties, given the deliberate
disregard to the judicial orders of the Catalan courts. The trial was swift and
the organizers were sentenced to jail terms of three to nine years.

Violent demonstrations
erupted in Madrid.

JHHW

In this issue

In issue 17:2 of 2019, the International Journal of
Constitutional Law published its second Foreword, authored by Ran Hirschl
and Ayelet Shachar. The Foreword challenged assumptions about the decline of
state sovereignty, the nation-state, and its borders and put forward a
counter-narrative centered on the spatial dimensions of public law and the
state. In dialogue with the Foreword, our first issue of the year opens with
the Afterword section, which features responses by Michèle Finck,
Jaclyn L. Neo, Oran Doyle, and Paul Linden-Retek, as well as
a rejoinder by Ran Hirschl and Ayelet Shachar.

Our Articles section features two contributions.
First, David Kenny and Conor Casey discuss the negative effects
of pre-enactment by analyzing different jurisdictions. They focus on what they
call “shadow constitutional review,” which takes place in certain jurisdictions
where pre-enactment review has effects antithetical to political
constitutionalism. Second, Michael Hein examines decisions issued by the
European constitutional and supreme courts in order to argue that although
constitutional entrenchment clauses matter, they are not always instruments for
the protection of democratic constitutionalism.

In our Critical Review of
Governance section, Tarunabh Kaitan and Jane Calderwood Norton continue their discussion
on the differences between the right to freedom of religion and the right
against religious discrimination (initiated in our previous issue, 17:4) by
analyzing the key doctrinal implications that follow from that distinction.

This issue also inaugurates a new occasional series,
Cross-Cultural Borrowings, which includes two contributions. First, Xie
Libin and Haig Patapan examine the reception and influence of Carl
Schmitt’s thought in contemporary China and how certain Schmittian concepts
have been deployed by different groups of contending scholars. Second, Masahiro
Kobori argues that the two main ideas prevalent among Japanese scholars
about parliamentary government were not held, nor did they originate, in
British constitutional theory. In fact, the author claims that contrary to what
constitutional scholars in Japan believe, they were derived from French
scholarship.

Our Symposium section features a collection of papers
on participatory constitution-making. Sujit Choudhry and Mark Tushnet
introduce the symposium by raising a number of questions posed by the more
recent developments in popular participation in constitution-making. The first
article, by Hélène Landemore, focuses on the recent Icelandic
constitutional process in order to explore what public participation in
constitution-making entails and when it matters. Next, Gabriel Negretto,
based on the analysis of aggregated data, argues that while direct citizen
participation is important, cooperation among a plurality of elected political
representatives is more likely to lead to the establishment of effective limits
on state power and, thus, to a more robustly liberal democracy. Thereafter, Ruth Rubio-Marín emphasizes
the exclusion of women from constitution-making and the structural dimensions
of said exclusion and traces women’s participation in constitution-making in
different jurisdictions. Finally, Abrak Saati analyzes and compares two
Fijian participatory processes of constitution-making that took place in a
transitional context and claims that these processes were merely symbolic and
failed to genuinely extend the Fijians’ possibility of influencing the content
of the Constitution.

In the Book Review section,
in addition to a number of reviews, David Dyzenhaus revisits the eternal question how lawyers should act in a legal system
that is wholly or partially illegitimate in his review essay on two recent
books engaging with the roots and origin of South African post-apartheid
constitutionalism: Ngcukaitobi’s The
Land is Ours: South Africa’s First Black Lawyers and the Birth of
Constitutionalism (2018) and Ngqulunga’s The Man
Who Founded the ANC: A Biography of Pixley ka Isaka Seme (2017).

JHHW and GdeB

[1] Jennifer Nedelsky, Law’s
relations: A Relational Theory of Self, Autonomy, and Law 4 (2011). The
book revisits all the central ideas of constitutional liberal theories, and the
key terms of her analysis are “relational self,” “relational autonomy,” and
“relational approach to law and rights.” Her theory can be ascribed, in a way,
to the critics of liberalism and liberal understanding of individual rights,
claiming that the current narrative shades “the full dimension of the self—particular,
embodied, affective and relational.” Id.
at 186.

[2] The credit for a relational approach to constitutional adjudication goes
to my academic friendship with Vittoria Barsotti, Paolo Carozza, and Andrea
Simoncini, with whom I co-authored Italian
Constitutional Justice in Global Context (2015). Responsibility for the
views expressed in the following pages is mine personally and does not involve
the Italian Constitutional Court as such.

[3] According to this definition I would like to comprise
all courts entrusted with the function of judicial review of legislation, be
they ordinary or special courts.

[14] This debate is very rich in the USA and in Europe.
Among the many scholars who participated in it, allow me to mention at least
Justice Steven Breyer, The Court and the World (2015), at 7 and
passim, who stresses the need for courts to listen to “many voices” and insists
on the importance of judicial discussions and conversations as an opportunity for
“an exchange of information and ideas, an open invitation for each judge to
consider his or her own system in light of others. The result is a broadening
of vision.” Id. at 270.

[23] There have been some episodes of this in Italian
history that have been examined, for example, by John Henry Merryman &
Vincenzo Vigoriti, When Courts Collide: Constitution and Cassation in Italy,
15 Am. J. Comp. L. 665 (1967); John
Ferejohn & Pasquale Pasquino, Constitutional Adjudication Italian Style,
in Comparative
Constitutional Design (Tom Ginsburg ed., 2012). In reality, they are not
representative of the ordinary relations between the Constitutional Court and
the Supreme Court of Cassation in Italy.

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